[Congressional Record (Bound Edition), Volume 158 (2012), Part 12]
[Senate]
[Pages 16649-16651]
[From the U.S. Government Publishing Office, www.gpo.gov]




                          SENATE RULES CHANGES

  Mr. JOHANNS. Mr. President, the Founders of this great country 
clearly wanted the Senate to serve as a deliberative body anchored with 
the ability to fully amend and to fully debate issues. Yet there has 
been a lot of talk lately about Senate rules changes to limit Senators' 
ability to make their voices heard.
  To many, this may sound like inside baseball, limited to the concerns 
of just a handful of Senators. But let me assure you this issue is so 
much more than that. The changes that are being contemplated would 
significantly impact everyday Americans, especially those who live in 
rural or less-populated States.
  Take Nebraska, for example. We do not necessarily consider ourselves 
small. We have almost 2 million people and several Fortune 500 
companies. But we also do not like the idea of getting steamrolled by 
high-population States; for example, California, New York or Illinois. 
But that is exactly what these Senate rules changes would allow.
  This is not just some wild supposition on my part. The majority 
leader himself said the filibuster ``is a unique privilege that serves 
to aid small States from being trampled by the desires of larger 
states.'' He went on to say it is ``one of the most sacred rules of the 
Senate.''
  Of course, that was a few years ago, before he proposed to do the 
very thing he has criticized. He now appears ready to undermine the 
most important rule, not by a two-thirds vote, as clearly required by 
Senate rule XXII, but by a simple majority fiat. This contradicts 
longstanding practice and disregards the 67-vote threshold President 
Lyndon Baines Johnson said ``preserves, indisputably, the character of 
the Senate.''
  This is the same so-called nuclear option Democrats previously 
decried as breaking the rules to change the rules. For example, the 
senior Senator from New York previously opposed such a blatant power 
grab saying:

       The checks and balances that Americans prize are at stake. 
     The idea of bipartisanship, where you have to come together 
     and can't just ram everything through because you have a 
     simple majority, is at stake. The very things we treasure and 
     love about this grand republic are at stake.

  Those are pretty powerful and unequivocal words, but it does not stop 
there.
  The senior Senator from Illinois called it `` . . . attacking the 
very force within the Senate that creates compromise and 
bipartisanship.'' So that reflects a trifecta of the Democratic 
leadership saying it is a bad idea. Yet they keep pushing it like it 
has somehow magically been transformed into a good idea.
  But it does not matter how long we polish the tin cup; it will not 
magically become the golden chalice. Again, you do not have to believe 
me. One of the Senate's great historians, Democratic Senator Byrd of 
West Virginia, was very clear on this issue. He said: ``Our Founding 
Fathers intended the Senate to be a continuing body that allows for 
open and unlimited debate and the protection of minority rights.''
  When faced with the idea of limiting these basic underpinnings of the 
Senate, he concluded: ``We must never, ever, tear down the only wall--
the necessary fence--this nation has against the excesses of the 
Executive Branch and the resultant haste and tyranny of the majority.''
  I had the great privilege of working with Senator Byrd when I first 
came to the Senate. We offered an amendment together which would have 
prevented the majority from stretching the Senate rules to enact 
Draconian cap-and-

[[Page 16650]]

trade legislation on a simple majority vote--interestingly enough, a 
situation not so different from today's proposals.
  Senator Byrd was very wise in these matters, serving as his party's 
leader in both times of majority and minority. He had seen both sides 
of the fence, if you will. He had studied the Framers and had 
determined that such a blatant power grab could not stand. In fact, the 
vast majority of our colleagues, on a bipartisan basis, agreed and our 
amendment passed on a vote of 67 to 31. That is exactly what should 
happen. If changes are needed, a bipartisan supermajority should 
approve them, not a simple majority changing the rules to break the 
rules, not a simple majority steamrolling the Nation.
  Senator Byrd left no doubt about his opinion of the so-called nuclear 
option when he implored us: `` . . . jealously guard against efforts to 
change or reinterpret the Senate rules by a simple majority, 
circumventing Rule 22 where a two-thirds majority is required.''
  He concluded with a statement more eloquent than any original words I 
might speak. So allow me to once again quote him. I implore my 
colleagues to listen carefully:

       . . . the Senate has been the last fortress of minority 
     rights and freedom of speech in the Republic formore than two 
     centuries. I pray that Senators will pause and reflect before 
     ignoring that history and tradition in favor of the political 
     priority of the moment.

  It is often said those who fail to study history are doomed to repeat 
it. I hope my colleagues will study this history, discover the wisdom 
of Senator Byrd, and decide to abandon this ill-advised hostile 
takeover of the Senate, this attempt to put a gag on the minority.
  One of my favorite statements on this subject from Senator Byrd is: 
``. . . before we get all steamed up, demanding radical changes of the 
Senate rules, let's read the rules.''
  Let's do that. Senate rule V clearly states that ``the rules of the 
Senate shall continue from one Congress to the next Congress unless 
they are changed as provided in these rules.''
  Rule XXII is very clear. It unquestionably says the necessary 
affirmative vote shall be two-thirds of the Senators present and voting 
to change the Senate rules.
  Again, very clearly, this is all about breaking the rules to change 
the rules.
  The sad thing for our Senate and our great Nation is that once the 
bell is rung, it cannot be unrung. Simple majority votes to change our 
Senate rules, I guarantee you, will become commonplace. Whenever a new 
party takes control, they will change the rules by a majority vote. 
Whoever occupies the majority at the moment will then run roughshod 
over the minority party, the laws they passed when they were in the 
majority, and their constituents. It is absolutely inevitable.
  Today's assurances that it only applies to motions to proceed will 
eventually ring hollow when it extends to judges, to bills, and then to 
conference reports. There will be nothing to stop it.
  One day we will awaken with a Senate that basically is the House of 
Representatives, where majorities rule and only their leadership 
decides what amendments will be considered and what votes will occur 
and when they will occur. We will have a legislative branch that does 
not resemble even faintly what the Framers of our great Constitution 
envisioned.
  But maybe, just as important, we would find entire states of 
constituents who have no voice in the policies that affect their daily 
lives. That would be a travesty.
  I implore my colleagues one last time to listen to the wisdom of 
their leaders of today and throughout our history--people such as our 
majority leader, who said: ``For more than 200 years the rules of the 
Senate have protected the American people, and rightfully so,'' and 
Senator Byrd, who said: ``As long as the Senate retains the power to 
amend and the power of unlimited debate, the liberties of the people 
will remain secure.''
  But, unfortunately, this great institution has evolved into a 
constant cycle of bringing flawed legislation to the floor, filling the 
amendment tree to prohibit all amendments, daring the minority party to 
vote no to protect the rights of their constituents, and when they do 
so, claim they are filibustering and obstructionist.
  If we could fix this one basic problem, if we could return the Senate 
to its most basic principle of open debate and opportunity for 
amendments, maybe we would realize the folly of these proposed rules 
changes and we would get back in the business of being Senators again 
and working together again.
  This quick fix is not the answer. I hope between now and January 
cooler heads will prevail, and we will put ourselves back on a path to 
finding bipartisan solutions to our Nation's most pressing problems.
  I yield the floor.
  Mr. UDALL of New Mexico. Mr. President, I ask through the Chair if 
the Senator from Nebraska will yield for a question.
  The PRESIDING OFFICER. The Senator from New Mexico asks the Senator 
from Nebraska to yield.
  Mr. JOHANNS. Yes, I will.
  The PRESIDING OFFICER. The Senator from New Mexico.
  Mr. UDALL of New Mexico. The Senator from Nebraska has talked about 
the rules not being able to be changed because internally in the Senate 
rules there is a provision that says you need a supermajority, two-
thirds of the Senate, to change the rules. This is the proposition we 
are hearing argued by many Senators, that we are breaking the rules to 
change the rules. We have heard that repeated several times over and 
over on the Senate floor.
  The other side of the argument, as the Senator I think well knows, as 
he worked up here and was around and saw Senator Byrd, is that the 
Constitution is superior to the Senate rules. And the Constitution 
specifically says, in article 1, section 5, that each House may 
determine the rules of its proceedings. Statutory construction applied 
to that means a simple majority determines the rules of its 
proceedings. This is a standard interpretation construction.
  We know supermajorities are only indicated at several places in the 
Constitution, and every place else it is implied that it is by a 
majority. Here you have a supermajority in the Senate rules and you 
have the Constitution saying at the beginning of a Congress you can 
change the rules by majority vote. So the question to the Senator is: 
Does not he agree the Constitution is superior to the Senate rules?
  The PRESIDING OFFICER. The Senator from Nebraska.
  Mr. JOHANNS. Mr. President, the Constitution would always trump, but 
that is a misinterpretation of what we are doing here. Let me play this 
out, because I am pretty confident I know how this is going to work if 
this is pursued. What would happen in January is there would be a 
request for a ruling by the Parliamentarian, and the Parliamentarian 
would correctly rule that in order to change the rules you need two-
thirds of the Senate. Then they would use the procedure of overruling 
our Parliamentarian with a majority vote. That will then stand as the 
ruling for the Senate. Very clearly what you are doing is you are 
skirting both the Constitution and the rules of the Senate.
  Let me, if I might, take the Senator's question and show the shocking 
result we are going to end up with. Do you realize there was a day in 
this body where judges were not filibustered? We can look at Supreme 
Court judges who might be controversial to one side or the other who 
were approved by a majority vote.
  So what happened? My friends on the other side of the aisle sat down, 
they brought in some constitutional scholar. He said: Well, why are you 
not filibustering judges? And now it is very routine and very common--
and both sides do it. So here is what is going to happen. Every time 
you have a majority that comes to power--and we all know the pendulum 
swings. In our lifetime we will see Republicans returned to the 
majority. That is how elections go--once this is cracked open, then 
they as the majority party can come in to change the rules and 
basically say: It is open season. We will get a ruling from the 
Parliamentarian just as the

[[Page 16651]]

Democrats did. We will overrule that ruling of the Parliamentarian by a 
51-vote majority or 50, if you have the Vice President in the chair, 
and then Katy-bar-the-door. All laws passed by that majority are now 
subject to being repealed by a majority vote.
  If you can do it on the motion to proceed, there is not any reason 
you cannot use this very flawed procedure to do it on every other piece 
and step along the way. That is what Senator Byrd was warning us about. 
He was basically saying: Members of the Senate, once you crack this 
door open, there is no turning back. And there will not be any turning 
back.
  So what happens to our country? Well, No. 1, the minority becomes 
powerless in the Senate. As a Member of the minority, I could come down 
here, I could offer an amendment. I could join forces with Senator Byrd 
on using reconciliation on climate change, and we could get 67 votes. 
But all of a sudden what is going to happen here is your minority is 
going to be basically without a voice in the Senate because the 
majority rules. That was never intended. That has not been part of our 
history.
  So I think to directly answer the question, you are misinterpreting 
what this is all about. The net effect of where we are going to end up, 
if we go in this direction, I guarantee you, in our lifetime we will 
look back at that moment in history and we will say that changed the 
operation of the Senate forever.
  As I said in my comments, once the bell is rung, it is impossible to 
unring the bell. We will not have stability in our laws and we will not 
have stability in our Senate and we will have a minority that is 
absolutely powerless. I do not believe that is what was intended.
  I yield the floor.
  The PRESIDING OFFICER. The Senator from Alabama.

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